[2013] KEHC 6182 (KLR)
The court found that the gender top up nominations were intended to address the constitutional requirement for gender balance in county assemblies, specifically to ensure that not more than two-thirds of the assembly members are of the same gender. Since 82 men and only 3 women were elected to the Nairobi County...
Source-derived case information.
- Citation
- [2013] KEHC 6182 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman, Independent Electoral & Boundaries Commission; Applicant: Patrick Lumumba Owade
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 227 of 2013
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- application dismissed
- Legal Topics
- Gender Representation, County Assembly Nominations, Party List Nominations, Natural Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Chairman, Independent Electoral & Boundaries Commission
Respondent
Patrick Lumumba Owade
Applicant
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the respondent's allocation of gender top up nomination seats in Nairobi County Assembly complied with constitutional requirements for gender representation.
- 2 Whether the applicant was unfairly excluded from the ODM gender top up nomination list.
- 3 Whether the court can make adverse orders against individuals not joined as parties to the proceedings.
Ratio Decidendi
The court found that the gender top up nominations were intended to address the constitutional requirement for gender balance in county assemblies, specifically to ensure that not more than two-thirds of the assembly members are of the same gender. Since 82 men and only 3 women were elected to the Nairobi County Assembly, only women could be nominated under the gender top up category to achieve the required gender balance. The applicant's contention that men should also be considered for gender top up seats was therefore unfounded. Additionally, the court held that it could not make adverse orders against individuals who were not parties to the proceedings, upholding the rules of natural...
Court Disposition
application dismissed
Orders
- The application is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JR. CASE NO. 227 OF 2013
REPUBLIC ………………………….………………….…………………………………APPLICANT
VERSUS
THE CHAIRMAN, INDEPENDENT ELECTORAL & BOUNDARIES
COMMISSION.……………………………………………………………………..…..RESPONDENT
Ex-Parte
PATRICK LUMUMBA OWADE
JUDGMENT
The applicant, Patrick Lumumba Owade, is aggrieved that he was not considered for the ODM gender top up nominations for Nairobi County. He has now filed this application to challenge the decision of the respondent in his complaint, IEBC/NDRC/PL/271/2013, in which he had argued that the distribution of nomination seats in Nairobi County was unfair to ODM, and that he was omitted from the nomination list and the seat given to one Rosemary Masitsa who was not a member of ODM.
In his submissions before us, the applicant complained that he should have been considered for two slots which went to strangers, one Susan Karimi and Rose Lamba, and that it is not just women who should be considered for the gender top up seat.
In response, the IEBC stated that it had explained to the applicant that the gender top up list was to ensure compliance with the constitutional requirement for gender representation, and that if the gender top up seats were allocated to men, their number in the County Assembly would increase unconstitutionality.
Determination
From the pleadings before us, there appears to be no basis for the applicant’s complaint. The issue of non-ODM members being nominated to the Nairobi County Assembly was addressed by the respondent in complaint number IEBC/NDRC/PL/222/2013-Lilian A. Ngoge vs ODM. The nominees who were found to be members of other parties were removed and replaced with ODM party members.
The alleged ‘strangers’ against whom the applicant seeks orders have not been made party to this petition, and it would be contrary to the rules of natural justice to make orders adverse to them in their absence. The court notes that the said Susan Karimi is not a party to this application, while the said Rose Masitsa, who is also not a party, was removed from the ODM nominations in the IEBC decision of 7th June 2013.
In any event, we agree with the view of the respondent that the gender top up was intended to address the constitutional requirement for gender balance in county assemblies to ensure that not more than two thirds of the County Assembly members would be of the same gender. This rule was not intended to apply to nominations to the County Assembly by a particular party as the applicant contends, but was intended to be with regard to the entire Assembly. The respondents state that there were 82 men elected while only 3 women were elected. Clearly, only women could be nominated to the County Assembly in the gender top up category.
We therefore find no reason to fault the decision of the respondent, and in the circumstances, this application is dismissed with no order as to costs.
Dated, Delivered and Signed at Nairobi this 12th day of July 2013
MUMBI NGUGI D. S. MAJANJA WELDON KORIR
JUDGE JUDGE JUDGE